The High Court of Australia has published two significant decisions in arbitration practice.
In Tesseract International Pty Ltd v Pascale Construction Pty Ltd [2024] HCA 24, the Court considered the application of the South Australian proportionate liability statutory regime to arbitral proceedings. The regime enables a respondent wrongdoer to join an alleged concurrent wrongdoer to a proceeding. The question was whether the regime applies to an arbitration in circumstances where the capacity to join a concurrent wrongdoer cannot be transposed to an arbitration.
The Court held by a 5:2 majority that proportionate liability statutes were capable of applying in arbitration.
Jonathon Redwood SC, Kate Lindeman and Boxun Yin appeared for ACICA.
In CBI Constructors Pty Ltd v Chevron Australia Pty Ltd [2024] HCA 28, the Court considered the extent of a supervisory court’s role in reviewing a tribunal’s finding that it was not functus officio, in the context of the ground for setting aside an arbitral award.
There, a tribunal had bifurcated the arbitration between liability and quantum. It issued an award on liability issues. When the claimants sought to agitate additional liability issues, the respondent objected on the basis that the claimants were precluded by preclusive estoppel from agitating those issues.
The majority (Gageler CJ, Gordon, Edelman, Steward and Gleeson JJ) upheld the principle that an arbitrator was functus officio in relation to the issues to which an interim award relates.
John Sheahan KC and Boxun Yin appeared for CBI Constructors.
